ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20170004661 APPLICANT REQUESTS: his record be corrected to show he declined to participate in the Survivor Benefit Plan (SBP) with his spouse’s concurrence APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * A letter updating the status of his SBP issue * DD Form 149 (Application for Correction of Military Record) * Miscellaneous documents FACTS: 1. The applicant states when he applied for his non-regular retired pay in April 2016, he and his spouse intended to decline SBP. However, because of errors in his packet regarding whether or not he had eligible dependents and the date of his spouse’s concurrence, they were enrolled contrary to their wishes. No one ever identified the errors until after the packet was processed and he did not realize there was a problem until he received his first month’s retired pay and saw the deduction for SBP. His spouse is currently covered under his civilian survivor annuity plan. Having her covered under both his civilian and military plans, and paying premiums for both, presents an unnecessary financial hardship. On 23 September 2019, applicant updated the Board. His SBP coverage has been terminated. However, termination does not permit refund of the previously deducted premiums. He would like the Board to review his case and correct his record so he can be reimbursed for the SBP premiums that were erroneously taken from his pay since December 2016. 2. The applicant provides the following relevant documents: a. A Federal Republic of Germany “Extract of the Register of Marriages” showing he and his spouse married on 5 May 1982. b. A “Notification of Eligibility for Retired Pay at Age 60” (aka 20-Year Letter), dated 2 June 2004, establishing his eligibility for non-regular retired pay. c. DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate, date stamped 8 September 2004, on which he chose “Option A—I decline to make an election until age 60.” (Analyst note: Page three, which would have contained both his signature and that of his spouse concurring in his decision to postpone making an election is missing. Page three is also missing from the record file maintained at the Human Resources Command (HRC). There is no evidence HRC reached out to applicant to inform him there was a page missing from the document which would have invalidated his decision to delay making an election.) d. Orders C-07-813941, dated 28 July 2008, placing the applicant in the Retired Reserve, effective 24 July 2008. e. DD Form 2656 (Data for Payment of Retired Personnel), dated 4 April 2016, and submitted in conjunction with his application for retired pay. He indicated that he had no eligible dependents and elected not to participate in SBP. Section XII— SBP Spouse Concurrence reads “Required when a member is married and elects child (ren) only coverage, does not elect full spouse coverage, or declines coverage. The date of the spouse’s signature in item 32b MUST NOT (emphasis in original) be before the date of the member’s signature in item 30b, above.” His spouse signed item 32a indicating that she concurred with his election. Her signature, which was witnessed by a notary public on 1 April 2016, predates applicant’s signature. f. A “corrected” of page two of the DD Form 2656, which shows he had eligible dependents and elected not to participate in SBP. He signed the form on 15 December 2016. His spouse signed item 32a, in the presence of a notary public, that same day. g. A letter from HRC, dated 31 August 2016, informing the applicant that his application for retired pay had been approved. h. Orders C-08-698443, dated 31 August 2016, placing him on the Retired List with an effective date of 13 November 2016. 3. A review of the applicant’s service record shows: a. He was appointed a commissioned officer in the Reserve Component on 21 December 1979. b. He was issued a 20-Year Letter on 2 June 2004 and placed on the Retired List on 13 November 2016, as noted in paragraphs 2b and h above. c. The analyst has confirmed that applicant’s SBP coverage has been terminated and that RCSBP coverage was never in place. 4. By law and regulation, notarized spousal concurrence is required to any SBP election other than an election of maximum coverage, whether it be child only coverage, spouse coverage at a reduced level, or not to provide any coverage at all. 5. By law, Soldiers may, with spousal concurrence, discontinue SBP coverage at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay began. No premiums are refunded. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that the evidence shows the applicant declined SBP beneftis with his wife’s concurrence prior to retirement. As such, the Board members agreed that the applicant should be reimbursed the SBP funds that were taken from his retirement pay since 15 Dec 2016 in error. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant declined SBP coverage in a timely manner and that all previously deducted premiums be reimbursed the applicant since his retirement on 15 December 2016. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1448, establishes the Survivor Benefit Plan (SBP). It essentially states, in pertinent part, that eligible participants include persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. A standard annuity participant is a person who is entitled to retired pay and who is married or has a dependent child when he becomes entitled to retired pay. A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan, to provide an annuity for the person’s spouse at less than the maximum level, or to provide an annuity for a dependent child but not for the person’s spouse. Concurrence to any such election must be obtained before the first day for which he is eligible for retired pay. 2. Title 10 USC, section 1448a, states, in pertinent part, a participant in the Plan may elect to discontinue participation in the Plan at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences. A married participant may not make such an election without the concurrence of the participant’s spouse. 3. The Department of Defense Financial Management Regulation directs statutory and regulatory financial management requirements, systems, and functions for all appropriated and non-appropriated, working capital, revolving, and trust fund activities. Volume 7B, Chapter 43, addresses SBP elections and election changes. Paragraph 430702 E states no premiums are refunded as a result of terminating coverage. No premiums will be charged after the effective date of termination unless the member had RCSBP coverage. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170004661 4 1